The Hate Speech Bill needs to clearly outline what we are trying to achieve by passing it and must be worded precisely and with care, so that it may be a useful and enduring piece of legislation that will take our Constitution to new heights.
The much-quoted preamble to our Constitution was described by the author, Henry Rollins, as an example of mankind on its tiptoes, reaching for greater heights.
The proposal that art could become criminalised for causing shock, offence or disturbance is a flare being sent up into the sky and South Africans should pay careful attention. Our nation’s founding ideal is freedom.
Freedom is not shelter. It never has been. A herd of cattle is kept safe, but is not free. The shepherd is protector and captor. Freedom is a hard-won and constant negotiation against oppression.
While God may be the Father to some, he is also the gatekeeper to everlasting torment and torture if He so chooses. Context is almost everything.
If art has any value beyond the aesthetic – it is exactly to shock, offend and disturb. How better to grab the onlooker and shake him out of apathy and into the wakefulness of self-reflection than the mutually agreed neutral space of art?
Apathy is not balance, but rather a state of least activity that society convinces itself is equilibrium. Governments who underperform want us to be indifferent. Management of an apathetic mass requires fewer rigours.
This is why activists are often pursued and immobilised. Action requires reaction, which is effort.
In democracy, equilibrium is a constant effort. Equilibrium is not torpor. The many seeking balance is a fluid process of effort and restraint – of give and take – of protest and surrender, a dynamic negotiation between forces, minor victories and losses, rationalised by a bigger picture. The greater good requires an equalisation of personal agendas to an imperfect compromise.
By presuming our individual constitutions are too weak to bear robust debate, the state is coercing us to forfeit our responsibility, which is to apply our minds and engage with democracy. What is the point of taxing sugar if the state encourages our mental obesity?
Just as a rich parent runs the risk of allowing privilege to rob their children of character-forming struggles, the state runs the risk of stunting the ability of the people to make sound judgements by criminalising art. Worse than this – clowns are merely gatekeepers – who will be next? Who will write the news, and who will be left to read it?
That is not to say we should not protect each other from harm. Our freedom is a promise that harm shall not come to you just from being who you are: sexually, religiously, racially, culturally, and philosophically – but harm must be clearly defined. And harm cannot be justly extrapolated as a direct result of being shocked, disturbed or offended.
Whatever you may be, and you may be whatever you are… if a show on a stage can destroy your faith in what it is you are, what were you to start with?
Shock, offence and disturbance are not harms – they are altered states and drivers of change. They provoke thought and dialogue, they nurture the questioning of beliefs. As the poet Frank Zappa said: “without deviance, there can be no progress”.
Shock in art is not trauma. Hate speech in certain forms and contexts would lead to shock, but may not necessarily result in trauma. Hate speech is not automatically the same as hate crime. To bind shock and trauma is an authoritarian sleight of hand.
To think that thew threat of being incarcerated for using words will correct a history of injustice would be to repeat the mistake that presumes prison terms will end rape, murder or corruption.
Sexually explicit art, violent art and satire regarding corruption are all not only allowed, but viewed as necessary in progressive environments where social development and human rights are prioritised. Are the arts, especially the comedic arts, not the safest arena in which to navigate the most difficult and sensitive topics? Is the red nose not a perfect warning sign that what we are about to engage in is humour?
Surely the safety valve for power is satire? Where else will the pressure built by authority’s constant stream of hot air find escape? Should we take to the streets in violent protest – or should we find relief in laughter? Satire restores imbalances where power has the upper hand. Dictatorships ban clowns because clowns are the last polite whisper of truth in power’s ear.
Hate speech and hate crime are real and have the potential to do damage. Art is not reality, art imitates life – it is not life. It is a reasonable facsimile thereof.
No one is saying that hatred does not exist. To deny the darkness evident in humanity is not only naive but also menacing. It is denialism that should be seen as the crime, not the work that rallies against it.
Historically, it is precisely the silence imposed upon populations by fear and/or ignorance that has led directly to religious leaders harming children, sports stars cheating, elected leaders abusing their positions and officers of the law being able to break the law with impunity.
Humour is a deflater that restores a balance. It is the canary in the mineshaft. Once humour expires – alarms should sound.
Art uses – among other tools – shock, offence and disturbance to shake an apathetic audience out of malaises of hopelessness and disillusionment and remind power that it isnot greater than, but equal to the people.
This process is not, by definition, smooth, comfortable or easy. The beginning of any exercise regime is equally uncomfortable, difficult to endure, challenging and painful.
How is it different with the pursuit of freedom? We appeal to you to apply real effort to the phrasing of the bill. To clearly outline what it is we are trying to achieve by passing it – and to word it precisely and with care, so that it may be a useful and enduring piece of legislation that will take our beloved Constitution to new heights. DM
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